Science and Technology Issues in Legal and Regulatory Approaches to Mitigating and Adapting to Climate Change

Climate change has significant implications for U.S. law and regulations, as illustrated by the growth in the climate-related litigation database at the Sabin Center for Climate Change Law at Columbia University, by court cases including Massachusetts v. EPA (2007) and West Virginia v. EPA (2022), by the Inflation Reduction Act of 2022, and by the Securities and Exchange Commission’s (SEC’s) rule on climate-related financial disclosures.

Many countries are making efforts to mitigate and adapt to climate change risks. However, significant factors, including politics, finances, economic growth, and applicable laws and regulations, limit these efforts. With the proper support and regulations, science and technology can play significant and growing roles in addressing this global challenge.

To limit the scope of this paper, we will focus on the U.S. power grid because of its significance to our society and economy and the scale of its greenhouse gas (GHG) emissions driving climate change. In 2022, the U.S. power generation market had a value of $1.7 trillion, and 60% of our electricity came from burning fossil fuels, mainly coal and natural gas, which led to 25% of all U.S. GHG emissions. We will illustrate how the strengths and limitations of science and technology will affect the legal and regulatory approaches to modernizing the U.S. power grid. Notably, we will discuss how current developments in artificial intelligence (AI) will positively and negatively impact the future of the U.S. power grid and its effects on climate change.

The paper concludes with comments on near-term developments and recommendations for improved U.S. legislation and regulation.

The Current State of Climate Change and the Science

Evidence, Impacts, and Challenges

The NCEI has documented a sharp recent increase in the frequency and intensity of billion-dollar weather and climate disasters. In 2023 alone, the world witnessed unprecedented heat events, devastating floods, and severe storms, underscoring the immediate need for action.

The IPCC’s reports provide compelling evidence that the situation will worsen without significant intervention. The most recent report stated, “Global greenhouse gas emissions have continued to increase, with unequal historical and ongoing contributions arising from unsustainable energy use, land use and land-use change, lifestyles and patterns of consumption and production across regions, between and within countries, and among individuals.”

Climate models have become more sophisticated and accurate in simulating the Earth’s climate system and have been successful at making predictions on a global scale. The scientific challenge is to improve the spatial and temporal resolution of the climate models and the capability to produce clear attributions, making proposed legislation and regulations more credible and specific and less vulnerable to litigation criticisms of being “arbitrary and capricious.”

Scientists evaluate the uncertainty in climate models by comparing the range of projections across different models. The spreads have been reducing as the data, science, software, and computing platforms have improved. However, the spatial resolutions and spread in current model predictions are still too large to provide confident estimates of regional climate and the probabilities of extreme events. The complexity of regional variations in climate patterns makes it difficult to predict the impacts of climate change locally, hindering targeted adaptation strategies. While there are promising developments in regional climate models, difficulties in modeling certain phenomena, including cloud formation and nonlinear feedback mechanisms and limits in computational resources, continue to pose significant challenges.

Climate change attribution is the study of whether, or to what degree, humans may have influenced extreme weather or climate events. Attributing extreme weather to human-induced climate change may affect how policymakers and court cases determine legislation and legal judgments. This subject has been an active area of research for more than 20 years. While scientists have made considerable progress, there are still important controversies. Difficulty attributing damage to specific sources has caused litigation strategies to fail. This history is stimulating further research. The Congressional Research Service produced a recent report on climate change attribution with recommendations for Congress.

Legal and Regulatory Implications in the U.S.

In the United States, the legal landscape concerning climate change is evolving. The growth in climate-related litigation, as tracked by the Sabin Center, highlights an increasing trend of holding governments and corporations accountable for their roles in climate change. Current legal activity includes “youth climate cases” in which groups of young people have filed suit against states for failing to protect them from the adverse environmental effects of climate change (e.g., the Montana case).14 Other activities include disputes over whether state courts can hear climate tort cases.15 Additional litigation involves pipeline and export issues.16

Landmark cases such as Massachusetts v. EPA (2007) and West Virginia vs. EPA (2022) have set significant precedents in environmental law. Additionally, the new rule announced by the SEC in March concerning climate-related financial disclosures has been very controversial, with litigation filed by critics and advocates leading to the postponement of implementation until there is a resolution. Federal, regional, and state regulatory agencies oversee the U.S. power grid.

The Massachusetts v. EPA case established the Environmental Protection Agency’s (EPA) authority to regulate GHGs under the Clean Air Act, recognizing these emissions as pollutants threatening public health and welfare. Several states and environmental organizations sued the EPA for failing to regulate emissions under the Clean Air Act. The Supreme Court found that greenhouse gases are air pollutants under the Clean Air Act and that the EPA must determine whether they endanger public health or welfare based on scientific evidence. The court’s decision emphasized the importance of scientific evidence in regulatory decisions, pushing the EPA to develop and use better technology and data to monitor and control emissions.

Conversely, West Virginia v. EPA challenged the extent of the EPA’s regulatory powers, reflecting ongoing tensions and legal battles over the scope and reach of climate regulations. The Supreme Court ruled that the EPA lacks authority under the Clean Air Act to impose emissions gaps by shifting electricity production from higher-emitting to lower-emitting producers. That “generation shifting” approach represented a “major question” of political and economic importance. The Court ruled that a regulatory agency cannot decide on “major questions” unless Congress unambiguously granted it such authority through legislation. However, the Court did not invalidate the earlier ruling that carbon dioxide (CO2) is a pollutant. It said the agency can still enforce emission reductions at individual power plants, which may indirectly shift energy generation to lower-emitting sources. Unlike the Massachusetts v. EPA ruling, science was not a significant issue in this case. The word “science” only appears once in a dissenting opinion.

The Inflation Reduction Act of 2022 (IRA) represents a recent legislative effort to address climate change through significant investments in renewable energy, energy efficiency, and GHG reduction initiatives. This act underscores the importance of legal frameworks in driving climate action and the critical role of science and technology in informing and shaping these regulations. The IRA had major provisions for deficit reduction and health care; but half of the funding focused on “Energy Security and Climate Change.” The initial investments focused on domestic energy production and manufacturing. If fully implemented, the IRA will enable a 40% reduction in GHG emissions by 2030.

The Chips and Science Act of 2022 “requires the [U.S. DOE] Office of Science to carry out activities relating to Earth and environmental systems science research and support user facilities to enhance the collection and analysis of observational data related to complex biological, climate, and environmental systems.”

The SEC issued the “Enhancement and Standardization of Climate-Related Disclosures for Investors” final rule on March 6, mandating incorporating climate risk into public company disclosures. As an example of the issues involved in this rule, a Morningstar report summarized the communications the ten largest asset management firms sent to the SEC, mostly supporting but with some concerns.

The rule has led to legal challenges. The Eighth Circuit will preside over nine consolidated cases, showing the controversy and importance of this rule.

The litigation over the SEC rule is part of the national controversy on climate change and potential legislation and regulation. This legal controversy occurs during the growing impacts of weather and climate disasters described above and is partly a result of uncertainties in scientific issues described below.

The key regulatory agencies have significant roles in modernizing the power grid.

• Federal Energy Regulatory Commission (FERC): Regulates the interstate transmission of electricity, natural gas, and oil; oversees wholesale electricity markets; approves rates and tariffs; and ensures grid reliability.
• North American Electric Reliability Corporation (NERC): Develops and enforces reliability standards for the bulk power system and monitors compliance with reliability standards to prevent blackouts and ensure grid stability.
• Department of Energy (DOE): Develops energy production and conservation policies, provides funding for grid modernization, conducts research, and ensures the security and resilience of the energy infrastructure.
• Environmental Protection Agency (EPA): Regulates environmental impacts of power generation and enforces regulations that affect power plants.
• Public Utilities Commissions and Public Service Commissions: Regulate electric, gas, telecommunications, water, and wastewater utilities at the state level, with some states having commission grid modernization and climate initiatives.

Strengths of Science and Technology in Mitigating Climate Change

Renewable Energy Technologies

One of the most promising areas where science and technology are making significant strides is developing and deploying renewable energy technologies. Solar and wind power have seen remarkable increases in efficiency and cost reductions. For instance, solar module prices have fallen from $120 (inflation-adjusted) per watt in 1976 to $0.113 per watt as of April 2024. Similarly, improvements in wind power technology have led to significant growth. In 2023, wind power firms installed a record 117 gigawatts of wind power globally, a 50% increase from 2022.

Energy Storage Solutions

Advancements in energy storage technologies, such as lithium-ion batteries, are crucial for addressing the intermittency issues associated with renewable energy sources. Improved battery storage allows for a reliable supply of electricity even when the sun is not shining or the wind is not blowing, enhancing the stability and resilience of the power grid. The technological development of batteries has been more complex than wind and solar developments. Still, the price of a kilowatt-hour (kWh) of usable capacity for a four-hour system suitable for stationary energy storage applications was 56% lower in 2023 than in 2017. The combination of technological improvements in wind, solar, and storage has led to significant global expansion in renewable energy generation capacity. This expansion will continue throughout the decade. For example, the global capacity of renewable energy generation is currently $1.7 trillion and will grow to $9–$12 trillion by 2030.

Smart Grid Technologies

Modernizing the power grid through smart grid technologies is another critical area that science and technology significantly impact. As defined by the Office of Electricity in the U.S. Department of Energy,

[m]odernizing the grid to make it “smarter” and more resilient through the use of cutting-edge technologies, equipment, and controls that communicate and work together to deliver electricity more reliably and efficiently can greatly reduce the frequency and duration of power outages, reduce storm impacts, and restore service faster when outages occur. . . . “Smart grid” technologies are made possible by two-way communication technologies, control systems, and computer processing. These advanced technologies include advanced sensors known as Phasor Measurement Units (PMUs) that allow operators to assess grid stability, advanced digital meters that give consumers better information and automatically report outages, relays that sense and recover from faults in the substation automatically, automated feeder switches that re-route power around problems, and batteries that store excess energy and make it available later to the grid to meet customer demand.

Carbon Capture and Storage

Carbon capture and storage (CCS) technologies offer a way to mitigate the impacts of existing fossil fuel infrastructure by capturing CO2 emissions from power plants and industrial sources and storing them underground. As the International Energy Agency summarized, “In the near and medium term, retrofitting the power sector with carbon capture technologies addresses emissions from the existing fossil-fueled fleet of power plants. These retrofits enable owners of existing power plants to recover their investment and, in doing so, to reduce the cost of power system transformation.” Because of technology improvements, BloombergNEF expects “[a] rapid increase in carbon capture and storage capacity for the power grid and other industries, to 3.9 billion metric tons of CO2 (GtCO2) per year by 2030.”

Electric Vehicles

The electrification of transportation through the development and adoption of electric vehicles (EVs) is another promising area for mitigating the risks of climate change. When powered by renewable energy sources, EVs produce zero tailpipe emissions and can significantly reduce the transportation sector’s overall carbon footprint. Advances in battery technology, charging infrastructure, and vehicle design are driving the growth of the EV market against various headwinds (see below). The EV-related challenges for the U.S. power grid are essentially about peak demand. Recent research at MIT has shown how to reduce the impacts of large-scale deployments of EVs on the power grid.

Benefits of AI for the Power Grid

Modernizing the U.S. power grid will cost more than $1 trillion in the next decade, but the U.S. DOE estimates that power outages cost the U.S. economy more than $150 billion annually. However, the energy transition faces complex regulatory and financial obstacles due to the regulatory agencies’ diverse charters and the high transition costs to a low-carbon economy.

Many initiatives are underway to address the costs and complexities. These initiatives are based on new technologies and potential grid architecture changes. U.S. power grid operators have begun using AI technology to analyze massive volumes of data and develop algorithms for improved grid operations. AI appears to be a practical step toward modernizing the grid infrastructure. However, this is in an early stage.

The U.S. federal government has taken significant steps to develop grid-related AI technology. For example, the U.S. DOE has committed $3 billion to AI-related smart grid programs, including grid management and analyzing weather patterns and demographic data for potential disruptions.

Power Grid–Related Limitations of Science and Technology

Financial and Economic Barriers

Despite these technologies’ significant potential for mitigating climate change and modernizing the power grid, substantial financial and economic barriers exist to their widespread adoption. High initial costs, although decreasing, still pose a challenge for many renewable energy projects. For example, the New York State Energy Research and Development Authority announced canceling three proposed offshore wind projects totaling more than 4 gigawatts of capacity in April. Those bids were all linked to significant supply chain investments by General Electric and a larger turbine it planned to build. “Subsequent to the provisional award announcement, material modifications to projects bid into New York’s third offshore wind solicitation caused technical and commercial complexities between provisional awardees and their partners, resulting in the provisionally awarded parties’ inability to come to terms.” GE did not plan to move forward with an 18-megawatt turbine. NYSERDA confirmed that was the main reason no final awards were made. A smaller turbine means a project would need more individual turbine locations to deliver the same power—and the costs would have been higher.

Political and Regulatory Challenges

Uncertainties in science and technology can lead to political and regulatory challenges in addressing climate change. These challenges can result in inconsistent policies, lack of political will, and further regulatory uncertainty. These effects can deter investment in renewable energy and other climate technologies. The legal challenges to the SEC’s rule are due, in part, to uncertainties in applying the science that is correct at global and regional scales to company assets and operations at local scales. While a significant segment of the scientific community believes that the SEC rule does not go far enough, many energy companies think that the rule is “arbitrary and capricious” because there is an insufficient basis for demonstrating that these disclosures will provide cost-effective benefits.

Technical and Infrastructural Constraints

Technical and infrastructural constraints are another major limitation. The existing power grid infrastructure in many countries, including the United States, was not designed to manage the variable nature of renewable energy sources. Upgrading and modernizing this infrastructure requires significant investment and time. Furthermore, integrating low-carbon technologies into the existing grid can present technical challenges related to compatibility, stability, and cybersecurity.

“The backlog of new power generation and energy storage seeking transmission connections across the U.S. grew again in 2023, with nearly 2,600 gigawatts (GW) of generation and storage capacity now actively seeking grid interconnection, according to new research from Lawrence Berkeley National Laboratory. . . .” FERC has taken recent steps to improve the regulatory process, which has been enabled by improved data management and information processing. Improving the interconnection process and reducing this backlog provide an excellent opportunity for AI technologies, but we are not yet seeing a significant impact.

Other technical challenges for the power grid include the enormous power requirements to run AI applications. The NERC Long-Term Reliability Assessment shows that U.S. power demand will double in 2024 compared to 2022. The Washington Post reports, “A major factor behind the skyrocketing demand is the rapid innovation in artificial intelligence, which is driving the construction of large warehouses of computing infrastructure that require exponentially more power than traditional data centers. AI is also part of a huge scale-up of cloud computing. Tech firms like Amazon, Apple, Google, Meta, and Microsoft are scouring the nation for sites for new data centers, and many lesser-known firms are also on the hunt.”

AI may be part of the solution, but it is now part of the problem of climate change. We need to change the balance in this situation. New research initiatives address the problems caused by the increasing electric power consumption.

Legal and Regulatory Approaches to Modernizing the U.S. Power Grid

Challenges and Opportunities

One of the primary challenges in modernizing the power grid is balancing the need for rapid deployment of renewable technologies with regulatory stability and certainty. Policymakers must create an environment encouraging innovation while providing clear and consistent regulations that protect public interests and ensure grid reliability. The new FERC order mentioned above is a positive step.

Other opportunities for improvement include providing financial incentives for clean energy investments. The IRA is a significant legislative achievement, but industry and government must do more to reduce emissions and climate change risks. Enhancing interagency coordination to address regulatory overlaps and gaps is necessary to reduce the above backlog of renewable generation capacity.

Additionally, incorporating scientific research and technological innovation into the regulatory process can help identify and address emerging challenges and opportunities in grid modernization. A significant test of this approach is in the potential resolution of the litigation involving the new SEC rule on climate-related financial disclosures.

Near-Term Developments

In the near term, several vital developments will shape the landscape of climate mitigation and adaptation in the U.S. power grid. Renewable energy capacity growth, driven by declining costs and supportive policies, will play a leading role. Advancements in energy storage, carbon capture and storage, and smart grid technologies will further enhance the grid’s flexibility and resilience and help to reduce GHG emissions.

Implementing the Inflation Reduction Act of 2022 also will have significant implications. This legislation provides substantial funding for clean energy projects, efficiency improvements, and GHG reduction initiatives. It represents a critical step in aligning federal policies with climate goals and supporting deploying advanced technologies.

Recommendations for Improved Legislation and Regulation

To enhance the role of science and technology in mitigating and adapting to climate change, here are a few recommendations for improved legislation and regulation:

Strengthen Federal Support for Renewable Energy. Increasing federal support for renewable energy through tax incentives, grants, and loan programs can accelerate the deployment of clean energy technologies. The IRA and the Chips Act were positive steps, but more work is necessary given the increasing GHG emissions. Further federal support is politically complex and highly dependent on the 2024 election results, but it is essential for critical progress. Ensuring long-term stability and predictability with these incentives will encourage private investment and innovation.

Enhance Grid Modernization Efforts. Investing in grid modernization, including AI technologies, and improving regulatory processes are essential for integrating renewable energy sources and enhancing grid reliability. Federal and state governments should prioritize funding for innovative grid technologies, energy storage, and infrastructure upgrades.

Strengthen Interagency Coordination. Enhancing coordination among federal agencies, state governments, and private sector stakeholders is critical for addressing the power grid’s complex regulatory landscape. Establishing interagency task forces and collaborative frameworks can improve regulatory coherence and effectiveness.

Incorporate Climate Resilience into Planning and Regulation. Integrating climate resilience considerations into grid planning and regulatory processes can help ensure the power grid is prepared for the impacts of climate change. This includes investing in infrastructure upgrades, enhancing emergency response capabilities, and promoting decentralized energy systems.

Enabling Effective Climate Action

Science and technology have the potential to play a vital role in mitigating and adapting to climate change, particularly in modernizing the U.S. power grid. While significant challenges remain, including financial, political, and technical barriers, the continued advancement and deployment of renewable energy, energy storage, smart grid technologies, and other innovations offer promising pathways forward.

Aligning legal and regulatory frameworks with scientific and technological advancements is essential to realizing these technologies’ potential. By strengthening federal support, enhancing grid modernization efforts, promoting public and private research and development, streamlining permitting processes, andimproving interagency coordination, policymakers can create an enabling environment for effective climate action.

Leveraging the strengths of science and technology through thoughtful and proactive legal and regulatory approaches is imperative in the face of an urgent and escalating climate crisis. The future of the U.S. power grid—and the broader fight against climate change—depends on our ability to harness these innovations and implement them at scale.

Robert F. Brammer, PhD is the president and CEO of Brammer Technology, LLC, a consultancy focusing on advanced information technology, environment and climate, and security. He is also an adjunct research professor in the Department of Atmospheric and Oceanic Science and the Department of Finance at the University of Maryland, College Park. He is a past chair of the ABA Science & Technology Law Section’s Cleantech and Climate Change Committee.